The National Consumer Law Center, Inc. created this website as a resource for courts, consumers, trustees, mortgage servicers, attorneys, academics, and others in the bankruptcy community. It organizes and provides access to numerous local rules, forms, general orders, and court opinions addressing a variety of mortgage issues in consumer bankruptcy cases.

Chapter 13 is the most common form of bankruptcy used by consumers to save their homes from foreclosure. Consumers in a Chapter 13 cases generally are not permitted to modify home mortgages, but they may submit a plan to the bankruptcy court in which they propose to cure a mortgage default. The typical "cure plan" provides that consumers will make payments to the mortgage creditor on both the amount they are behind before filing (the "arrearage" payments) and the regular, ongoing payments that come due after filing (the "maintenance" payments). If the plan is approved by the bankruptcy court and the consumer completes the plan, generally in a three to five year period, the consumer should emerge from bankruptcy with a fully current mortgage and the foreclosure will be avoided. Over the years, many consumers have been able to save their homes in this way in a Chapter 13 bankruptcy.

There are a number of reasons, however, why consumers may have difficulty keeping up with their plan payments. There may be some life-changing event during the plan, such as job loss or major sickness, or the consumer's mortgage payments may simply not be affordable. Another problem which has been well documented over the years is that mortgage servicers may file inaccurate claims listing amounts owed, may not properly credit cure plan payments as they are made, and may not disclose to consumers payment changes and fees assessed during the plan. It is not uncommon for debtors who successfully complete their Chapter 13 plans to receive a bill for thousands of dollars of previously undisclosed fees once they come out of bankruptcy.

Research and Resources on Bankruptcy Servicing Problems:

National Consumer Law Center, Inc., Foreclosures, 2010 3d ed.

Katherine M. Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims, 87 Tex. L. Rev. 121 (2008) (analyzing data from lender and servicer claims in 1700 chapter 13 cases, finding lack of documentation of costs and misleading categorizations in substantial portion of claims).

Gretchen Morgenson, A Low Bid for Fixing a Big Mess, New York Times, May 14, 2011 (reporting that United States Trustee Program has found that many consumers have been harmed by significant flaws in the documentation filed by mortgage servicers in bankruptcy cases).

In response to some of these problems, bankruptcy courts have issued numerous local rules, forms and orders addressing a variety of mortgage claim and payment issues in bankruptcy cases. Some courts have also responded to the current foreclosure crisis by adopting local rules and forms to assist consumers and mortgage creditors in entering into voluntary loan modifications, and to specify the procedural requirements for treating certain junior mortgages. All of these documents are collected on this website. They are organized by topics and are searchable by subject and court location. Visitors to this site are able view and download all referenced documents.

Types of Documents

The following is a description of the types of documents that are available to view and download.

  • Local Rule (LR) - This refers to a rule governing practice and procedure which has been adopted by the bankruptcy court and district court in a particular district in accordance with Bankruptcy Rule 9029, and which is generally applicable in all cases and proceedings within the district.
  • Standing Order (SO) - This refers to an order entered by all or some of the bankruptcy judges within a particular district governing practice and procedure for certain cases and proceedings within the district or division.
  • General Order (GO) - same as "standing order" above.
  • Administrative Order (AO) - same as "standing order" above.
  • Administrative Memorandum (AM) - This refers to an announcement or informational materials made available to the bankruptcy bar and public by a bankruptcy court concerning matters of practice and procedure in certain cases and proceedings within the district or division.
  • Local Form (LF) - This refers to procedural forms which are either required by the bankruptcy court to be used in certain cases and proceedings within the district or division, or which are made available by the bankruptcy court for use by parties at their discretion.
  • Model Plan Provision (MP) - If the bankruptcy court has adopted a model chapter 13 plan, this refers to relevant provisions contained in the model plan.
  • Court Opinion (CO) - This refers to judicial opinions by the bankruptcy court involving litigation related to the local rules, forms, or relevant topics. For example, a requirement in the district that ongoing mortgage payments on a cure plan be disbursed in certain circumstances by the trustee rather than directly by the debtor may be found in a judicial opinion and not in a local rule.

Categories of Documents

Loss Mitigation and Mediation

  • Formal Loss Mitigation Program - This refers to formal loss mitigation or mediation programs which have been implemented by bankruptcy courts to facilitate negotiation of loan modifications or other foreclosure avoidance alternatives, such as the programs adopted by the Bankruptcy Court for the Southern District of New York (and certain judges in the Eastern District of New York), and the Bankruptcy Court for the District of Rhode Island. This includes any documents related to such programs.
  • Orders Related to State Foreclosure Mediation Programs - Some states or local municipalities have adopted mediation programs as part of the state foreclosure process. This refers to any bankruptcy court rules, orders, or forms which attempt to coordinate bankruptcy proceedings with a state or local foreclosure mediation program.
  • Loss Mitigation Requirement before Plan Confirmation/Stay Relief - This includes any documents related to loss mitigation or mediation requirements that are not part of a formal program, and which may be imposed in relation to Chapter 13 plan confirmation or relief from the automatic stay proceedings.
  • Creditor Contact with Debtor not Stay Violation - This refers to bankruptcy court rules or orders which provide that a mortgage creditor's contact with the debtor's counsel or debtor to negotiate a loan modification is deemed not to be a violation of the automatic stay.
  • Loan Modification and Forbearance Agreement Terms - This includes any documents related to the terms of loan modification and forbearance agreements. Rules requiring consent by the trustee of any agreement are also included.
  • Loan Modification Approval - This includes any documents requiring bankruptcy court approval of loan modification and forbearance agreements, and any related procedures.
  • General Mediation / ADR Programs - This refers to any rules, orders or forms governing mediation or alternative dispute resolution programs of general application adopted by the bankruptcy court pursuant to 11 U.S.C. § 105(d) and Bankruptcy Rule 7016.

Cure Plan Requirements

  • Proof of Claim Attachments/Requirements - This includes any rules, orders or forms requiring additional supporting information for mortgage proofs of claim, such as an itemization of interest and fees and included in the claim amount.
  • Notice of Payment Changes and/or Periodic Statements - This includes any rules, orders or forms requiring that consumer debtors be notified of payment changes on mortgage accounts due to interest rate and escrow account adjustments while a Chapter 13 case is pending. It also includes any requirement that monthly or periodic statements be provided.
  • Notice of Fees and Charges - This includes any rules, orders or forms requiring mortgage creditors to provide notice of fees and charges which the creditor has assessed against the debtor or the debtor's property while a Chapter 13 case is pending.
  • Payment Application Requirements - This refers to any rules, orders or forms which specify how payments made by debtors in Chapter 13 cure plan cases should be applied by mortgage creditors.
  • Requirement for Trustee Mortgage Payment Disbursement - Many jurisdictions have moved to requiring that ongoing mortgage "maintenance" payments in a cure plan case be disbursed by the trustee rather than the debtor. This refers to any documents which specify how "maintenance" payments shall be disbursed.
  • Fee Dispute Resolution Procedure - This includes any rules, orders or forms which establish a notice and hearing procedure for resolving disputes related to post-confirmation assessment of fees and charges in chapter 13 cases.
  • Effect of Cure - Some courts require that the trustee or debtor initiate a proceeding at the end of a Chapter 13 to determine whether the debtor has fully cured all arrearages. This includes rules or forms implementing such a requirement.
  • Sanction for Noncompliance - This refers to any rules, orders or forms adopted by the bankruptcy courts related to sanctions for noncompliance with any cure plan requirements.

Stay Relief Requirements

  • Itemization of Fees/Payment History - This refers to any rules, orders or forms requiring an itemization of all unpaid fees and charges, or the filing of a payment history, in connection with motions for relief from the automatic stay.
  • Proof of Standing - Some courts have required that the moving party in a stay relief motion must allege facts and/or provide documentation to establish that it is the real party in interest and has standing to bring the motion. This includes rules, orders or forms implementing such a requirement.
  • General Requirements including Worksheets, Declarations or Other Attachments - This includes all other stay relief documentation requirements.

Lien Stripping

In general, mortgages which are secured by the consumer debtor's principal residence may not be modified or "crammed down" in a chapter 13 case. However, if senior liens on the debtor's home exceed the value of the home, then a junior lien creditor whose lien is effectively "underwater" can be treated as a wholly unsecured claim in Chapter 13. The mortgage creditor's security interest is rendered void and "stripped off" if the debtor completes the Chapter 13 plan. The circuit courts have unanimously held that this form of lien modification is permissible and not barred by 11 U.S.C. § 1322(b)(2). Many courts have adopted model Chapter 13 plans which contain a provision for valuing and treating secured claims. These plan provisions were included in the categories listed below only if they specifically addressed claims secured by real property or referred to "wholly unsecured" mortgages.

  • Pleading Requirements - This includes any documents specifying whether a lien stripping proceeding must be brought by motion or adversary proceeding, or may be determined as part of the plan confirmation process.
  • Service Requirements - This refers to any documents related to service of process requirements for lien stripping proceedings.
  • Proof/Valuation Requirements - This refers to any documents containing specific requirements related to expert testimony or proof concerning property valuation, or the method for calculating mortgage pay off amounts.
  • Timing and Content of Order - Courts have not reached agreement on whether lien stripping orders may enter prior to plan completion or discharge, or whether they may be conditionally entered and recorded subject to discharge. This includes documents related to these issues.
  • Availability in No Discharge Cases - This includes documents, mostly court opinions, related to the issue of whether a debtor who is not eligible for a Chapter 13 discharge may strip off a mortgage.

Model Chapter 13 Plans

  • Model Chapter 13 Plans - This refers to any local form model plans that are required (or are made available) to be used by consumer debtors in chapter 13 cases.

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